Merrick Garland Appoints a Special Counsel in Biden Documents Case
Given the discovery of two sets of documents at Joe Biden’s house, Merrick Garland has appointed former Maryland US Attorney Robert Hur as Special Counsel to investigate that case.
I don’t think this is a bad thing. It will eliminate any claim of bias and ensure a report can be filed at the end. And it will stave off GOP interference in the case.
Garland described the following timeline.
November 4: NARA informs DOJ of the documents
November 9: FBI conducts an assessment to understand whether classified information was mishandled
November 14: Garland assigned US Attorney Lausch to conduct initial investigation
December 20: Biden’s counsel informed Lausch of additional documents in the Wilmington garage
January 5: Lausch briefed Garland of initial investigation and recommended further investigation
January 11: Biden informed Lausch of an additional document from Biden’s personal residence
Update: Hur’s statement:
I will conduct the assigned investigation with fair, impartial, and dispassionate judgment. I intend to follow the facts swiftly and thoroughly, without fear or favor, and will honor the trust placed in me to perform this service.
It will never eliminate claims of bias. If the Special C reports it’s a nothing burger, Republicans and their media empire will scream that it’s rigged.
Republicans will attempt to interfere in predictable and novel ways.
Eliminating political bias is not the only purpose in the administration of justice. It’s often not possible or relevant. Here, there are valid legal reasons for Garland’s appointment of a SC.
I have no standing to debate the legal basis for appointing a Special Counsel, but this is political red meat and the wolves are salivating with hunger and glee.
With the evaporation of the (likely unconstitutional) Starr-type Independent Counsel, reporting to Congress not POTUS, also gone was any independence.
As we took a microscope to the Mueller investigation, there is no independence from POTUS in current Special Counsel statutes.
Any notions of politicization or lack of politicization within the process are a facade: the Special Counsel is wholly an Executive Branch employee, fully influenced by the POTUS in charge.
And even the Starr-type Independent Counsel, the modern gold standard for level independence (from POTUS) probably receives the most criticism in Special Counsel history as being purely political animal. There’s no winning on this one for anyone in their position, so you just have to go with the statutes you have to give the best appearance you can.
I think you are selling the GOP short, Marcy. They will continue to claim bias, just as they have with damn near everything else that doesn’t go exactly the way they want. It’s how they roll – just look at their continued screams of bias over all the cases around “Stop the Steal” lawsuits, that judges of all stripes laughed out of court.
As for idea that this will stave off interference, Jim Jordan would like someone to hold his beer.
Their spin could be that the SC was appointed so that the White House could tinker with the results whilst simultaneously thwarting the Republicans in their efforts to get to the truth.
The GOP will claim bias no matter what. This is intended to provide plausible assurance that the facts have been examined and delivered to the public. How much of the public notices or cares is left as an exercise for the reader.
It’s certainly true that the GOP will scream about this. They’re pretty predictable that way. IIRC, they also screamed about Secretary Clinton’s handling of secret documents.
I think that the most important part of this is to determine how the documents ended up where they did, and whether there were any potential breaches in security as a result. They are not being described as “top secret” or compartmentalized information, which suggests that national security wasn’t significantly compromised.
I could be misreading the statues, but 793 definitely requires intent to keep the NDI and not return it when asked.
To me that rules out a 793 charge for merely retaining but returning once discovered. Maybe I’m wrong on that.
And 1924, which I know, I know doesn’t really apply to Trump or Biden any way, but even if it did, it has a 5 yr SOL as opposed to 793, which is 10 yrs.
So unless there is some ongoing conspiracy we don’t know about, I think any charge save for 793 is time-barred.
So honestly, I just don’t see charges coming out of this. By all means though, investigate so Biden can be cleared.
Am I missing something here?
The T***p MO very much hinges on getting the investigation, so the GOP has already “won.”
Any and all commentary now includes Biden being investigated. See Impeachment #2. It doesn’t matter why, nor does the outcome matter…it’s now “out there.”
It is times like these that I’m grateful for the impartiality of the DOJ…assuming that’s what’s going on behind the scenes.
Joe Six Pack in a diner in Ohio doesn’t know what a 793 is, but he can easily fit “both sides do it” into his consciousness about classified documents from now on…and he will.
The 793 would extend to the period when the docs were unlawfully held. But as you said, for a POTUS or VPOTUS, that would require outright refusing to give it back — what is present with Trump and not Biden.
There’s also 18 USC 2071, but that too appears to be a 5 year SOL.
As noted elsewhere, Biden kept his clearance between his government service terms, while Individual-1 did not after January 20, 2021. Not that it will matter to the GOP or CNN (and worse) ilk for the very reasons noted above. However, in terms of being unauthorized to have these documents, that is a much stronger case regarding M-a-L than Biden.
Rwingers seem to be missing the nuance gene. Nuance is definitely NOT one of their fortes in life.
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The process of lending out top secret documents to the President and or Vice President quite frankly seems to lack in any tracking and follow up to have the documents returned. How is it that the agency or agencies in charge providing the TS documents fail, apparently quite frequently, not be able to have them properly returned. From my cursory reading of the latest non return of documents the agencies that lent them out did not know they were missing. Is that really possible? The system of late seems to be failing. The process need a forensic review. Let me state I know nothing of this process. Never thought it was an issue until the trump fiasco.
Irrespective of the differences between VPOTUS & POTUS, which Executive Branch administrator do you believe is able to compel POTUS to act? A law won’t pass Constitutional muster under a disagreeing POTUS, so you’d probably have to hard code that into Art. II. Difficult, but not impossible.
I agree that it would be difficult to hold the chief executive accountable for returning classified documents if they choose not to. It’s the seeming lack of tracking I don’t understand. It seems to me that after a thorough analysis of what is lacking in the current system, changes could be implemented without the need for new legislation. Of course, that could just be my ignorance.
I don’t think Garland had a reasonable choice, and I do think it is a good thing. While I don’t think appointing a special prosecutor will stop the R’s from charging the docs are proof of everything bad they impute to Biden and the D’s, I do think it will substantially limit the audience crediting their howling to pretty hard core fascists and/or those reliant wholly on such sources for their knowledge of the world. Without a special prosecutor, under these circumstances, I think it would not be unreasonable to be concerned something was being covered up.
it would seem possibly to be a good thing, in that it now gives crazed committees of the GOP more balls in the air to juggle: another dog&pony show to compete with hunter biden’s laptop.
will the public’s ennui ensue?
Now we’re cooking with gas! … oh darn it.
Everyone here seems to have missed the real point, which is both a matter of National Security and politics. The law is incidental. It is NOT whether Biden (and his team) have committed a crime in the handling of these documents – they likely haven’t. The question is, in their handling of these documents after Biden left office in Jan. 2017, did Biden and his teams gross negligence disqualify Biden and his team for holding high office ? I can tell you, anyone who has done this and admitted it on an SF86 would likely NOT been given a Top Secret clearance.
IMHO any person running for Federal office who could not pass a Special Background Investigation (SBI) should NOT be eligible to take the Oath. They are not, as the regulations say, “worthy of the trust of the United States.” This whole affair is very troubling to me.
I think you’re missing some important points. Like that the office stuff was in a locked closet, not accessible to janitors or random visitors. The more recent stuff was in Biden’s garage, which is also not available to random visitors (and is probably locked when he’s not home, as well as having security).
You are making counter-Intelligence points. The probability that these documents were seen by unauthorized persons is small for the reasons you cite. However these are both clear violations of the regulations governing the handling of these highly sensitive documents. They are NOT under ANY circumstances to leave government custody. They are NOT to be stored in unaccredited facilities which are not compliant with DIAM 50-3 (before Rayne jumps back in, I KNOW this regulation has been superceded). Those are the facts. Storing these things in unaccredited facilities is negligence – full stop.
Rayne here, jumping in. This bit: “Storing these things in unaccredited facilities is negligence” — yeah, there’s no charge for negligence, nor is there an accreditation process.
Use the right terminology. Quit swagging shit here.
Your argument implies this is an exceptional violation of regulations (gross negligence and all). Is it? In the sense that violation of the protocols for handling classified violation (ignoring the whole levels of classification thing, and has anyone reported that for Biden yet?) is an unusual case. We don’t know that because no one has cared until, once again, Trump has flagrantly violated the norm that the White House has basically unrestricted access to classified documents and there are no impediments to them doing what they will with them.
An overly narrow reading of a complex situation, but one that’s far more straightforward than the media or Republicans are making out.
Before we draw and quarter Joe, maybe we should take a sec and see what the situation actually is.
Why would the people of the United States want the intelligence and security community to be able to dictate who can and can’t be elected? We’ve already seen with Hillary Clinton that they’re willing to use the classification system to undermine civilian officials and interfere with the internal operations of other government branches, by deliberately applying an incorrect classification level, classifying documents generated by other agencies, or retroactively classifying things. Making elected officials subject to an SBI just to enter office would dramatically increase the likelihood of the entire system being corrupted, no matter how fair it currently is. (To say nothing about how infamously slow the process is and how it requires third parties to cooperate with the investigation, creating additional points to undermine candidates.)
You are definitely right about the intel community screwing H Clinton over her emails.
The State Department server that was sending Sec Clinton her emails was not even a classified server, and was prohibited from sending classified files in the first place.
Your argument was that Trump could pass an SBI until he stole classified docs at the end of his term?
Jared and Ivanka couldn’t, and Individual-1 was and still is even more compromised. Also, any of these ideas floating around to make someone pass the SBI investigation will lose because that’s still not a Constitutional requirement.
The concept of legal restrictions superseding Constitutional ones has been tested in a case regarding a Congressman who had to be seated even though he was busted for misuse of public funds (Powell v. McCormack, 1969) and the Constitution won.
If measured against the routine financial, marital, business judgment, and other problems that hang up security clearances, Donald Trump would never in his life have passed a background investigation and obtained a clearance, any more than Rudy G would have.
Keeping promises, for example, is a big deal – to spouses, creditors, etc. – and defaulting on them is a big hurdle. Five or six bankruptcies and serial failures to pay creditors, especially labor, alone would have doomed any clearance.
Not to mention, Trump’s casinos being fined four times for money laundering.
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Trump’s financial issues alone, pre-2016 would disqualify him for a Top Secret clearance if was honest on his SF86. Jared Kushner’s SF86 disqualified him until the IC’e adjudication was over-ruled by Trump. Kushner is no saint, but he is a better man than Trump.
Perhaps “less bad” is more apt than “better”…
Right. My point was that Presidents don’t have to pass such qualifications. Trump never submitted an SF86.
Nor do the Congresscritters as far as I know. It’s about the Powell v. McCormack case noted above for qualifications. About all the national security team could do is stop briefing when the compromised ones are present, but what would they do for the ‘Gang of Eight’ if one of them is a security risk?
As for election qualifications, it would seem obvious that to be able to run, the candidate must provide proof of their qualifications (i.e. a birth certificate, state residency and a naturalization certificate if born outside the USA). These would be vetted before adding the candidate to the ballot by the elections officer.
However, if the birther, voter suppression and J6 adventures have taught us anything, it’s that the ones making the decisions and the standards they use need to be likewise vetted to remove political bias. There are many examples why this is important, but I’ll cite the voter ID as the archetype, because only certain government issued documents were OK (DLs and hunting license) but not others (student IDs, etc.) clearly intended to eliminate liberal-leaning students but not the rednecks.
There is also the example of Emily Murphy at GSA saying she didn’t have enough information to start the transition process until very late in the timeline available, which may have contributed to the J6 planning since no one from Biden’s team would know what was going on in time to stop it.
I am troubled, but I am also encouraged that Biden is cooperating with the investigation and is making everything transparent. If you don’t have something to hide, then it makes sense you cooperate with the classified documents investigation.
I am sure we’ll find out what happened soon. Biden cooperation will close this investigation sooner.
The difference here, Biden has all incentives to cooperate, including motivations, whereas Trump has all the incentives to obstruct, delay. Which tells you all you need to know.
except we don’t know all that
see all the discussion around security clearances, and ‘Silly but True’s comment below
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Where’s Biden’s Judge Cannon when you need her?
Do you have a point?
Everything you are saying has the ring of truth. That’s why I am glad there is a Special Counsel, so don’t have to agree. I can just say, “Let’s just let the investigation take its course.”
“Biden and his team’s gross negligence disqualify Biden and his team for holding high office” (apostrophe added)
So “Biden”?
His “team”?
“Biden and his team”?,
*disqualify*
“Biden and his team”?
I mean, I see what you said, but where is the evidence – at this point – that it was “Biden” and/or “his team” that make you conclude that “Biden and his team” should be disqualified from “holding higher office”?
I’ve gotta’ back up here because I’m having a goddamned fucking hard time with “The law is incidental.”
That’s a wholly Trumpian argument. If the law is incidental, why is DOJ even bothering with all of this?
Christ, I need a nightcap.
I’ll disagree with the prevailing thought: being investigated by a special counsel is never a good thing. In a spectrum of bad things, it will be good for the Special Counsel to conclude exculpatory rather than inculpatory conclusions.
But this will and is being already spun in ways that having no investigation could never be spun.
In the seven years these documents have been hanging out in Biden’s home & office, it’s just really bad timing for them to come out now; although there is never any good time.
More to the point, I suspect Biden’s experience is more the norm than any outlier, and you’d probably find a non-zero amount of similar papers within the realms of the Pence, Cheney estate, Al Gore, and Bush estates. Likewise Obama and GW, and Clinton if exhaustive searches were performed.
Yeah, I basically agree with this whole post. In fact, when I heard about this on MSNBC I couldn’t help quoting one of my favourite lines from the Muller report: “This is the end of (Biden’s) presidency. He’s fucked.” Even though this is in no way equivalent to what TFG did it’s going to be spun until it looks like it to enough people so that it doesn’t matter. One of Nicole Wallace’s “favourite friends and guests” on the Deadline WH panel about this said something I’ve thought before and was glad to hear from someone more qualified: Merrick Garland has been a judge for too long. He would have been perfect on the SC, but he was not the best choice for AG.
Besides that it’s probably true that if you looked hard enough everyone since Ford had a few docs that accidentally didn’t make it to the archives, from what little we’ve heard about these docs they don’t sound terribly concerning(yes I get that whatever the content/classification level is it’s a crime, but still). I know we don’t need to know what’s in them but as an educated guess would country backgrounders be higher than secret/noforn? What really upset me about the MAL docs was not just the top secret but the ts/sci, being that careless with sigint and humint.
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Given that the office needed to be refurbished, who would have been the perfect AG?
Hi Rayne,
Thanks for the reminder – I always use cat-related names online and I wanted something different for here so since I’m part Ukrainian I picked the romanization of the word for kitten. I unfortunately don’t speak Ukrainian (I know ~_~ I’m trying to work on this) but still I thought something about this looked off – I should have gone with that and looked it up. This was inadvertent and not trying to sockpuppet. I’m sure I’ll remember this in the future now. >^_^<
Three words
Peterr is right
I agree with Marcy, that this overall is a good thing. Though, of course, this will be Benghazi 2.0. Let’s not underestimate the House fascists (recalling that Hitler was once jailed and still managed to finagle a dictatorship out of a minority political position).
The person I feel for the most in this whole mess is Merrick Garland. Playing by the book and then this rolls across his desk. The timeline Marcy relates shows MG is the right person at the right time in the USAG position. I hope he’ll see this through to the end.
Unfortunate, mainly because it is difficult to imagine handing Trump a larger PR win. The spin will shout down details with howls about equivalence.
I think this means the possession and transport of documents cases are done for. OTOH, Trump’s obstruction of those cases are going to hang around.
I agree with oldtulsadude.
Trump catches a PR break, unquestionably, but when the entire GOP suddenly jumps up with outrage when they have been silent as to Trump, they have implicitly agreed such matters are serious, not on the scale of the “overdue library book” Trump’s counsel argued to judge Dearie.
Biden’s cooperating and currently holds the office, so not only is he unlikely to be prosecuted on the merits, no such prosecution would be happening for a few years even if there would be a prosecution. Trump’s case is on an independent timetable, and will go forward without the delay that hampered Mueller’s obstruction findings because Trump held office. The GOP will revert to hypocrisy, of course, when they resume arguing Trump’s situation was not significant, but the video archive of the reactions to Biden will be awkward.
I see the special prosecutor appointment as to Biden as beneficial in the long run, with the added benefit of the GOP now having conceded that such matters are serious.
Let me begin by stating that I think it was a good thing to appoint a special counsel, as it lends credibility and independence to the investigation. However, it is my understanding that 28 CFR § 600.1 requires appointment of a special counsel when the AG “determines that criminal investigation of a person or matter is warranted.” Non-criminal regulations were violated, so various investigations are warranted, such as one to determine the extent of actual harm to national security and congressional investigations. Nevertheless, I am not aware of any reported facts that would indicate a criminal investigation is warranted.
While I think it extremely unlikely that Biden had these documents with criminal intent [not even clear he personally ever possessed them or knew of their presence], when conduct ostensibly is repeated, i.e. having documents one is not lawfully entitled to have, three times, it theoretically could support an inference of criminal intent.
“having documents one is not lawfully entitled to have”
Assumes facts not in evidence. Unlike Trump, Biden retained a security clearance in the interim between his VP service and his election as president. That doesn’t get him off the hook for mishandling, obviously, but it distinguishes this behavior from Trump’s on its face.
Agree. Biden retained the privilege of access to these documents all the way up to his election to the Presidency.
Trump did NOT because Biden judged Trump untrustworthy to hold the clearance required to access this stuff after leaving office. I think that makes a big difference.
Biden made an error in handling the documents, but Trump just flat stole them and when confronted by NARA and the DoJ lied and refused to give them back. The first offense is sloppiness, the second is one or more felonies.
Of course you can’t indict a sitting president and, according to Mueller, there’s no point in asking the question whether you would have indicted if it weren’t a sitting president. So at least Biden is off the hook.
To paraphrase Rayne, that’s a defeatist, Trumpian outlook that creates a false equivalence.
The claim of Presidential immunity from indictment rests on an OLC memo (e,g, an opinion written by the executive branch for themselves) that has never been tested in litigation AFAIK. Congress didn’t pass a bill, nor does the Constitution grant such immunity. Therefore it’s not the law.
There are actually two OLC memos, but yes, it is, at best, DOJ protocol, not hard law.
I’m speculating here, but is it possible that we would never know about Trump’s documents if he had given NARA the documents they requested instead of being his toddler-brained self, saying “mine, mine, mine”? Then the Biden documents wouldn’t be a verified story that saw the light of day either?
I just feel like broadcasting our inability to keep secrets secure to the world isn’t something the government prefers to do unless it’s the last option.
In Trump’s case, it is not simply classified documents that are at issue. There are all manner of presidential records that are *not* classified and yet are the property of the US government, which should have been turned over by the Trump administration and yet were not.
Classified documents are the low hanging subset of those documents, because no one (save Trump) could imagine that these are somehow personal documents and not official work product of someone in the US government. That’s what made it easy for NARA and DOJ to go to court and get a warrant for documents bearing classified markings. It is quite likely that non-classified docs in Trump’s possession would be subject to protracted litigation if Trump wanted to argue they were his.
But make no mistake: NARA has a right to *all* presidential records, not simply those marked classified.
I take polite exception to the commenters who assume that Biden committed gross negligence. We don’t know the facts yet. All we know is that he had (knowingly or not) possession of classified documents. We don’t know how they got to where they were found, or as Marcy has pointed out, who put them there. We also know that Biden has acted promptly and of his own volition to rectify the situation.
Perhaps, going forward, there needs to be some kind of official procedure whereby senior officials must verify/ account for the documents that said officials take with them into private life when they leave office. I don’t claim to know how this works now but I haven’t heard anyone say that such a procedure exists.
Yes, exactly.
Perhaps this will help some.
https://www.cnn.com/2023/01/12/politics/biden-documents-final-days-vice-president-aides-scramble/index.html
Leon Panetta said the same thing on an interview aired by NPR this past week.
He said that the WH has been sloppy with these documents for way too long.
The Congress needs to put in statute a WH Document Control Law that binds everyone there but the POTUS and VPOTUS to the same rules everyone else has to follow. The POTUS can flaunt the law, but if all his staff can go to the Big House for letting him do so, he won’t have very many accomplices.
I came back to give thanks for that timeline recap. I always had confidence in MG and I find this timeline reassuring, given the clown car that is the House GOP.
The GOP continues to manufacture controversies where there are none. Biden’s documents might eventually be a problem, but I don’t think the public have any of the facts that would make it one. Not that that would stop the media from manufacturing it as readily as the GOP. The “ban gas stoves” bullshit is another. It’s not a Biden policy, nor is it ever likely to become a Democratic one. Doesn’t stop the MSM or Republicans from pretending otherwise.
Gas stoves/cookers are, however, a problem for the environment. Many of them leak and contaminate living spaces, which is a financial and resource problem as well as an environmental one. Using them generates byproducts that contaminate the environment inside homes, which causes health problems. In the US, that’s a financial problem, too.
Regulating them would contribute to reduced global warming. The same with, say, wood burning stoves and fireplaces. Restricting neither would be a home run, or the silver bullet impatient Americans are trained to expect as the only way to win a game. What works is addressing issues one step at a time.
Europe, for example, has been wrestling with both problems for some time. What their governments don’t do is ban their use. They do or contemplate banning their installation in new or renovation projects. In the case of wood burning appliances, they ban their use in congested areas. They subsidize the consumer cost of replacing them. They discuss the problem and educate the public – something energy industry lobbyists in the US have banned as effectively as restricting the production of and removing forever chemicals from the environment.
We used to have a gas cooktop, putatively because you could control the temp better. We now have a GE Profile induction cooktop, and it is fast and perfectly controllable. Far more so than the gas.
InstaPot and one “burner” induction cooker for me in a city that took only 20 years or so to aggregate citizens together to purchase renewable electricity through the municipality as the mid-1990s electricity deregulation regulations allow.
The gas stove in my rented apartment is there only for back-up although my housemate uses it often.
Exactly right. The city of L.A. banned home incineration of trash in the early ’60s – the house I grew up in had a built-in trash incinerator, but I never saw it used. And wood-burning fireplaces have been banned in new construction for a number of years now. Doesn’t mean that on a cold day that you can’t smell wood-burning fireplaces in older houses burning away…
Ari Melber was saying that it doesn’t make sense that Garland put a Trump vet as special counsel in Biden investigation.
And for Hunter Biden investigation he did similar.
The question is why would you appoint people that work in the Trump administration, to handle such delicate political investigations.
I hope Garland knows what he is doing.
I understand the need for the special counsel, if nothing else it needs insulation from the House GOP interference. Just who he picks is a mater of principle as well and as important.
It would be interesting to see how long Robert Hur investigation lasts.
Ahem, no, the putative “Hunter Biden case” is in Delaware. That is literally where it is and should properly be. Having a dude in NDIL do a review was fine, and appointing Hur is fine. It is okay, let’s see how it plays out before castigating it all.
Welp, there goes any chance of seeing Trump held responsible for at least a single criminal act. The media is completely incapable of differentiating between the two cases and this is tailor made for their false equivalency disorder. And with Trump, anything short of murder or espionage was always going to include factors like whether a prosecution would appear political.
I don’t think that is right. Let’s see how this goes before drawing hard conclusions.
Just Biden our time. Thanks, bmaz.
https://youtu.be/kHHyKw-r8cs
“Busby Marou – Biding My Time (Official Video)”
Fair enough, it’s still early. I wrote that comment after hearing NPR talk about the case and was disappointed by the way they presented it. We’ve been kicked in the teeth so many times since 2016, and maybe I’ve gotten too cynical. It’s good to hear someone with actual knowledge and experience in this domain to say that take is wrong, and I hope it is.
FWIW, a week or two ago I watched a news clip in which Joyce Vance said she anticipated that it would be March when we would begin to see something relative to Jack Smith’s purview. Of course, she doesn’t have a crystal ball. But she sure knows a lot more than I do. So, it at least gave me a reasonable timeframe to consider. And that helped to reinforce my confidence in the hard work and progress of all those unsung employees at DOJ.
What’s hilarious is that the Biden lawyers won’t leak the contents of the documents like Trump did, so Republicans will be allowed to hysterically claim that this is the same as Trump having NK/Saudi nuclear photos. It’s going to be a shitshow for as long as the Kochs and their ilk have the Republicans by the balls.